(September 24, 2021 / JNS) Several Jewish groups have filed friend-of-the-court briefs in support of a case that could determine whether public funding could be given to parochial schools for secular education.
In Carson V. Makin, parents of parochial-school students argued that the Maine Department of Education discriminated against their children by denying them tuition assistance available to nonsectarian schools.
The First Circuit Court of Appeals ruled in favor of the Maine Department of Education. Now, the U.S. Supreme Court will consider whether the state is in violation of the free exercise of religion or the equal protection clause of the Constitution by prohibiting otherwise qualified students from state aid programs because they attend religious schools.
“Excluding religious-school students from a state aid program that benefits other private-school students is discriminatory and unconstitutional,” said Rabbi Chaim Dovid Zwiebel, executive vice president of Agudath Israel of America, which has expressed its support for the plaintiffs. “We hope that this case will pave the way for religious-school students in Maine and elsewhere to receive state tuition aid.”
Agudah is one of several Jewish groups that filed a friend-of-the-court brief on behalf of the plaintiffs through the National Jewish Commission on Law and Public Affairs. The commission also represents the Rabbinical Council of America and Torah U’Mesorah, a consortium of some 675 Jewish day schools and yeshivahs educating some 190,000 students.
In its filing, the Jewish Commission on Law and Public Affairs noted that the state of Maine requires children to learn secular subjects.
“If a child is enrolled in a school that teaches only secular subjects, the child’s education is subsidized from public funds,” the brief said. “If, however, a child is enrolled in a ‘sectarian’ school—one that teaches religious observance as well as a legally adequate secular curriculum—public funds are denied. In such circumstances, the expense of both the secular and religious programs must derive from private funds such as tuition or voluntary contributions.”
“Imposing such a financial burden on parents who are obliged by religious conscience to enroll their children in ‘sectarian’ schools,” the Jewish law commission continued, “is an obvious burden and disincentive for religious observance.”
Also filing in support of the plaintiffs is the Orthodox Union, which “is concerned that if the decision below is permitted to stand, it would perpetuate discrimination against minority faiths and license the greatest discrimination against faiths such as Orthodox Judaism that observe religious rules and rituals in nearly every facet of everyday life.”
“In particular,” wrote the O.U. in its amicus brief, “this case affords the court an opportunity to end once and for all the discrimination against religious minorities perpetuated by state Blaine Amendments and similar enactments, and hold that states may not discriminate against faith-based institutions in administering neutral and generally available government funding programs.”
The Blaine Amendments are state laws that prohibit state funding for religious schools. The Supreme Court has never ruled on whether the laws themselves are legal or violate a person’s First Amendment right to freedom of religion.
Others who have filed amicus briefs include a group of Republican senators who believe that the first circuit’s ruling “would prevent students from receiving tuition assistance if they choose to attend schools that Maine considers “sectarian,” violates the Religion Clause of the United States Constitution and is at odds with centuries of federal legislative practice.”
Among the signatories are Minority Leader Mitch McConnell (R-Ky.), Mike Lee (R-Utah) and Ted Cruz (R-Texas).
Arguments on the case are expected to begin on Dec. 8.
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